93 Decision Citation: BVA 93-21124
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-15 883 ) DATE
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THE ISSUE
Entitlement to service connection for arthritis of multiple joints.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
This matter first came before the Board of Veterans' Appeals (Board)
on appeal from an October 1988 rating action from the Indianapolis,
Indiana, regional office (RO). That decision, in part, denied
service connection for arthritis of multiple joints. The notice of
disagreement was received in April 1989, and the statement of the
case was issued in August 1989. In January 1990, the RO again denied
service connection for arthritis. A supplemental statement of the
case was issued that month.
In a decision dated in August 1991, the Board denied service
connection for arthritis of multiple joints. By means of a
subsequent Memorandum Decision, [citation redacted], the United
States Court of Veterans Appeals
(Court) vacated the August 1991 Board decision and remanded the case
to the Board for further development of the case in accordance with
the Court's decision. This remand is rendered by the Board in
response to that decision.
Service connection is in effect for shell fragment wounds with
retained foreign bodies to the left foot and right knee. A 20
percent rating has been in effect for the foot and a 10 percent
rating has been in effect for the knee since 1948. Also, service
connection is in effect for residuals of shell fragment wounds to the
posterior cervical region and right forearm. Noncompensable ratings
have been in effect for these disorders from 1944 and 1955,
respectively.
The veteran served on active duty from November 1937 to November 1940
and January 1942 to November 1944, including a period as a prisoner
of war from December 6, 1942, to July 15, 1944.
REMAND
It is contended that service connection is warranted for multiple
joint arthritis as a result of the veteran's experiences as a
prisoner of war. During service, the veteran injured the left foot,
toes, right forearm, knees and neck. Now, he has arthritis in the
fingers, shoulder and neck, and he reports that it is difficult for
him to walk as he experiences pain in the legs.
The evidence currently available for review includes the veteran's
service medical records and post service Department of Veterans
Affairs (VA) and private medical documents from 1945 through 1990.
Arthritis of a joint was first noted in 1981. Private facility X-
rays of the cervical spine and knees were interpreted as showing
arthritic changes. Subsequent records also report arthritis of these
areas.
A private physician reported in November 1982 that the veteran had
shrapnel in the neck, knees, left foot and toe and right forearm. It
was his opinion that the shrapnel in the veteran's neck was
aggravating muscles of the neck resulting in tension and headaches.
He stated that "[t]his and other areas also have resultant fibrous
changes and increased arthritis."
Upon VA examination in 1986, the hands showed degenerative joint
disease, more severe on the right, and degenerative arthritis of the
left great toe. X-rays of the cervical spine and right knee showed
spurring and narrowing at the joints. When examined by the VA in
1988, the right and left hand continued to show degenerative changes.
The right knee showed a small metallic foreign body in the soft
tissues, but the knee joint itself was normal and osteoarthritis was
not reported. Private facility X-ray reports from March 1990 showed
moderate degenerative changes in the cervical spine and considerable
degenerative spurring around the thoracic intervertebral disc.
The additional development mandated by the Court in its decision
necessitates our remanding of the veteran's claim to the RO prior to
any further appellate consideration of his claim. In particular, the
Court has determined that the Board reached its determination without
addressing the private physician's opinion that was beneficial to the
veteran's claim. Additionally, the Court found that the Board did
not support all of its findings and conclusions with sufficient
reasons and bases.
In view of the foregoing, this case is remanded to the RO for the
following:
The veteran should be afforded a special
examination to be conducted by an orthopedist to
determine the nature and extent of all current
arthritic changes. The examiner should be
specifically instructed to address the question
of whether current arthritic changes are the
product of any trauma, with his or her findings
and the reasons and bases therefor, set forth on
the examination report. Additionally, the
examiner is asked to express an opinion as to
whether the shrapnel fragments in the
appellant's neck, knees, left foot and toe and
right forearm have resulted in headaches or
aggravated his arthritis as reported by a
private physician in 1982. The claims folder is
to be made available to the examiner prior to
this examination.
Following completion of the above, the RO should review the veteran's
claim, and determine whether service connection is warranted for
arthritis of multiple joints. If the decision remains in whole or in
part adverse to the veteran, he and his representative should be
provided with a supplemental statement of the case and with a
reasonable opportunity to respond. The claim should thereafter be
returned to the Board for further appellate review.
The veteran need take no action until he is so informed. The
purposes of this REMAND are to obtain additional medical evidence and
to ensure compliance with due process considerations.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
W. H. YEAGER, JR., M.D. C. P. RUSSELL
*
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. § 20.1100(b) (1992).
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The Chairman has directed that the Section proceed
with the transaction of business, including the issuance of
decisions, without awaiting the assignment of a third Member.